28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

ADDITIONAL INFORMATION:

Withdrawal of Outstanding NPRMs

With the publication of this NPRM, the Department is withdrawing three outstanding NPRMs:  the joint NPRM of the Department and the Access Board dealing with children's facilities, published on July 22, 1996, at 61 FR 37964; the Department's proposal to extend the time period for providing curb ramps at existing pedestrian walkways, published on November 27, 1995, at 60 FR 58462; and the Department's proposal to adopt the Access Board's accessibility guidelines and specifications for state and local government facilities, published as an interim final rule by the Access Board on June 20, 1994, at 59 FR 31676, and by the Department as a proposed rule on June 20, 1994, at 59 FR 31808.  To the extent that those proposals were incorporated in the 2004 ADAAG, they will all be included in the Department's proposed standards.

Regulatory Process Matters

This NPRM has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.  58 FR 51735 (Sept. 30, 1993).  The Department has evaluated its existing regulations for title II and title III section by section, and many of the proposals in its NPRMs for both titles reflect its efforts to mitigate any negative effects on small entities.  The Department has also prepared an initial regulatory impact analysis (RIA), as directed by Executive Order 12866 (amended without substantial change by E.O. 13258, 67 FR 9385 (Feb. 26, 2002), and E.O. 13422, 72 FR 2763 (Jan. 18, 2007)), and OMB Circular A-4.

The Department's initial regulatory impact analysis measures the incremental benefits and costs of the proposed standards relative to the benefits and costs of the 1991 Standards.  The assessment has estimated the benefits and costs of all new and revised requirements as they would apply to newly constructed facilities, altered facilities, and facilities that are removing barriers to access.

A summary of the regulatory assessment, including the Department's responses to public comments addressing its proposed methodology and approach, is attached as Appendix B to this NPRM.  The complete, formal report of the initial regulatory impact analysis is available online for public review on the Department's ADA Home Page (http://www.ada.gov) and at http://www.regulations.gov.  The report is the work product of the Department's contractor, HDR|HLB Decision Economics, Inc.  The Department has adopted the results of this analysis as its assessment of the benefits and costs that the proposed standards will confer on society.  The Department invites the public to read the full report and to submit electronic comments at http://www.regulations.gov.  

Regulatory Flexibility Act

This NPRM has also been reviewed by the Small Business Administration's Office of Advocacy pursuant to Executive Order 13272, 67 FR 53461 (Aug. 13, 2002).  Because the proposed rule, if adopted, may have a significant economic impact on a substantial number of small entities, the Department has conducted an Initial Regulatory Flexibility Analysis (IRFA) as a component of this rulemaking.  The Department's ANPRM, NPRM, and the RIA include all of the elements of the IRFA required by the Regulatory Flexibility Act (RFA).  See 5 U.S.C. 601 et seq., as amended by the SBREFA, 5 U.S.C. 603(b)(1)-(5), 603(c).

Section 603(b) lists specific requirements for an IRFA regulatory analysis.  The Department has addressed these IRFA issues throughout the ANPRM, NPRM, and the RIA.  In summary, the Department has satisfied its IRFA obligations under section 603(b) by providing the following:

1. Description of the reasons that action by the agency is being considered.  See, e.g., "The Roles of the Access Board and the Department of Justice," "The Revised Guidelines," and "The Advance Notice of Proposed Rulemaking" sections of the titles II and III NPRMs; Section 2.1, "Access Board Regulatory Assessment" of the initial regulatory impact analysis;  see also Department of Justice ADA Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768-70, (Sept. 30, 2004) (outlining the regulatory history and rationale underlying DOJ's proposal to revise its regulations implementing titles II and III of the ADA);

2. Succinct statement of the objectives of, and legal basis for, the proposed rule.   See, e.g., titles II and III NPRM sections entitled, "Summary," "Overview," "Purpose," "The ADA and Department of Justice Regulations," "The Roles of the Access Board and the Department of Justice," "Background (SBREFA, Regulatory Flexibility Act, and Executive Order) Reviews," and "Regulatory Impact Analysis"; App. B: Regulatory Assessment sections entitled, "Background," "Regulatory Alternatives," "Regulatory Proposals with Cost Implications," and "Measurement of Incremental Benefits"; see also 69 FR at 58768-70, 58778-79 (outlining the goals and statutory directives for the regulations implementing titles II and III of the ADA);

3. Description of, and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.  See Section 6, "Small Business Impact Analysis" and App. 5, "Small Business Data of the RIA" (available for review at http://www.ada.gov); see also App. B: Regulatory Assessment sections entitled, "Regulatory Alternatives," Regulatory Proposals with Cost Implications," and "Measurement of Incremental Benefits" (estimating the number of small entities the Department believes may be impacted by the proposed rules and calculating the likely incremental economic impact of these rules on small facilities/entities versus "typical" (i.e., average-sized) facilities/entities);

4. Description of the projected reporting, record-keeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.  See titles II and III NPRM sections entitled, "Paperwork Reduction Act" (providing that no new record-keeping or reporting requirements will be imposed by the NPRMs).  The Department acknowledges that there are other compliance requirements in the NPRMs that may impose costs on small entities.  These costs are presented in the Department's Initial Regulatory Impact Analysis, Chapter 6, "Small Business Impact Analysis" and accompanying App. 5, "Small Business Data" (available for review at http://www.ada.gov);

5. Identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.  See, e.g., title II NPRM sections entitled, "Analysis of Impact on Small Entities" (generally describing DOJ efforts to eliminate duplication or overlap in federal accessibility guidelines), "The ADA and Department of Justice Regulations," "Social Service Establishments" (§ 35.151(e)), "Streamlining Complaint Investigations and Designated Agency Authority" (§§ 35.171, 35.172, and 35.190), "Executive Order 13132:  Federalism" (discussing interplay of section 504 and ADA Standards), "Alterations" (§ 35.151(b)) (discussing interplay of UFAS and ADA Standards); title III NPRM sections entitled, "Analysis of Impact on Small Entities" (generally describing DOJ's harmonization efforts with other federal accessibility guidelines), "Social Service Establishments" (§ 36.406(d)), "Definitions of Residential Facilities and Transient Lodging," "Housing at a Place of Education" (§ 36.406(e)) (discussing section 504), "Change ‘Service Animal' to ‘Assistance Animal,'" "Scope of Coverage" (discussing Fair Housing Act), "Effective Date: Time Period," and "Social Service Establishments" (discussing UFAS); and

6. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and minimize any significant impact of the proposed rule on small entities, including alternatives considered, such as:  (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) use of performance rather than design standards; and (3) any exemption from coverage of the rule, or any part thereof, for such small entities.

The Department's rulemaking efforts satisfy the IRFA requirements for consideration of significant regulatory alternatives.  In September 2004, the Department issued an ANPRM to commence the process of revising its regulations implementing titles II and III of the ADA.  See 69 FR 58768, (Sept. 30, 2004).  Among other things, the ANPRM sought public comment on 54 specific questions.  Prominent among these questions was the issue of whether (and how) to craft a "safe harbor" provision for existing title III-covered facilities/entities that would reduce the financial burden of complying with the 2004 ADAAG.  See id. at 58771-58772.  The ANPRM also specifically invited comment from small entities concerning the proposed rules' potential economic impact and suggested regulatory alternatives to ameliorate such impact.  Id. at 58779 (Question 10).  By the end of the comment period, the Department had received over 900 comments, including comments from SBA's Office of Advocacy and small entities.  See, e.g., title II NPRM Preamble and title III NPRM Preamble sections entitled, "The Advance Notice of Proposed Rulemaking" (summarizing public response to the ANPRM).  Many small business advocates expressed concern regarding the cost of making older existing title III-covered buildings compliant with new regulations (since many small businesses operate in such facilities) and urged DOJ to issue clearer guidance on barrier removal.  See title III NPRM Preamble discussion of "Safe harbor and other proposed limitations on barrier removal."  In drafting the NPRMs for titles II and III, the Department expressly addressed small businesses' collective ANPRM comments and proposed regulatory alternatives to help mitigate the economic impact of the proposed regulations on small entities.  For example, the Department's regulatory proposals:

• Provide a "safe harbor" provision whereby elements in existing title II- or title III-covered buildings or facilities that are compliant with the current 1991 Standards or UFAS need not be modified to comply with the standards in the proposed regulations (see "Safe Harbor" and § 35.150(b)(2) of the title II NPRM; "Safe Harbor and Other Proposed Limitations on Barrier Removal" and § 36.304 of the title III NPRM);

• Adopt a regulatory alternative for barrier removal that, for the first time, provides a specific annual monetary "cost cap" for barrier removal obligations for qualified small businesses (see title III NPRM sections entitled, "Safe Harbor and Other Proposed Limitations on Barrier Removal" and "Safe Harbor for Qualified Small Businesses Regarding What Is Readily Achievable");

• Exempt certain existing small recreational facilities (i.e., play areas, swimming pools, saunas, and steam rooms) which, in turn, are often owned or operated by small entities, from barrier removal obligations in order to comply with the standards in the proposed regulations (see title II NPRM at § 35.150(b)(4) and (5) and title III NPRM section entitled, "Reduced Scoping for Public Accommodations, Small Facilities, and Qualified Small Businesses"); and

• Reduce scoping for certain other existing recreational facilities (i.e., play areas over 1,000 square feet and swimming pools with over 300 linear feet of pool wall) operated by either title II or title III entities (see title II NPRM at § 35.150(b)(4) and (5) and title III NPRM section entitled, "Reduced Scoping for Public Accommodations, Small Facilities, and Qualified Small Businesses").

Taken together, the foregoing regulatory proposals amply demonstrate that the Department was sensitive to the potential economic impact of the revised regulations on small businesses and attempted to mitigate this impact with a variety of provisions that, to the extent consistent with the ADA, impose reduced compliance standards on small entities. 

Section 610 Review.

The Department is also required to conduct a periodic regulatory review pursuant to section 610 of the RFA, 5 U.S.C. 601 et seq., as amended by the SBREFA, 5 U.S.C. 610 et seq..

The review requires agencies to consider five factors:  (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules and, to the extent feasible, with state and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.  See 5 U.S.C. 610(b).  Based on these factors, the agency is required to determine whether to continue the rule without change or to amend or rescind the rule, to minimize any significant economic impact of the rule on a substantial number of small entities.  See id. at 610(a).

In developing these proposed rules, the Department has gone through its regulations section by section, and, as a result, proposes several clarifications and amendments in both the title II and title III implementing regulations. The proposals reflect the Department's analysis and review of complaints or comments from the public as well as changes in technology.  Many of the proposals aim to clarify and simplify the obligations of covered entities.  As discussed in greater detail above, one significant goal of the development of the 2004 ADAAG was to eliminate duplication or overlap in federal accessibility guidelines as well as to harmonize the federal guidelines with model codes. The Department has also worked to create harmony where appropriate between the requirements of titles II and III.  Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.

The Department has consulted with the Small Business Administration's Office of Advocacy about this process.  The Office of Advocacy has advised that although the process followed by the Department was ancillary to the proposed adoption of revised ADA Standards, the steps taken to solicit public input and to respond to public concerns is functionally equivalent to the process required to complete a section 610 review.  Therefore, this rulemaking fulfills the Department's obligations under the RFA.

Executive Order 13132: Federalism

Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), requires executive branch agencies to consider whether a proposed rule will have federalism implications.  That is, the rulemaking agency must determine whether the rule is likely to have substantial direct effects on state and local governments, a substantial direct effect on the relationship between the federal government and the states and localities, or a substantial direct effect on the distribution of power and responsibilities among the different levels of government.  If an agency believes that a proposed rule is likely to have federalism implications, it must consult with state and local elected officials about how to minimize or eliminate the effects.

Title II of the ADA covers state and local government programs, services, and activities and, therefore, clearly has some federalism implications.  State and local governments have been subject to the ADA since 1991, and the majority have also been required to comply with the requirements of section 504.  Hence, the ADA and the title II regulations are not novel for state and local governments.  This proposed rule will preempt state laws affecting entities subject to the ADA only to the extent that those laws directly conflict with the statutory requirements of the ADA.  But the Department believes it is prudent to consult with public entities about the potential federalism implications of the proposed title II regulations.

Title III of the ADA covers public accommodations and commercial facilities.  These facilities are generally subject to regulation by different levels of government, including federal, state, and local governments.  The ADA and the Department's implementing regulations set minimum civil rights protections for individuals with disabilities that in turn may affect the implementation of state and local laws, particularly building codes.  For these reasons, the Department has determined that this NPRM may have federalism implications and requires intergovernmental consultation in compliance with Executive Order 13132.

The Department intends to amend the regulations in a manner that meets the objectives of the ADA while also minimizing conflicts between state law and federal interests.  To that end, as a member of the Access Board, the Department has been privy to substantial feedback from state and local governments through the development of the 2004 ADAAG.  In addition, the Department solicited and received input from public entities in the September 2004 ANPRM.  Some elements of the proposed rules reflect the Department's work to mitigate federalism implications, particularly the provisions that streamline the administrative process for state and local governments seeking ADA code certification under title III.

The Department is now soliciting comments from elected state and local officials and their representative national organizations through this NPRM.  The Department seeks comment from all interested parties, but especially state and local elected officials, about the potential federalism implications of the proposed rule.  The Department welcomes comments on whether the proposed rule may have direct effects on state and local governments, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government.

National Technology Transfer and Advancement Act of 1995

The National Technology Transfer and Advancement Act of 1995 (NTTAA) directs that all federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, which are private, generally non-profit organizations that develop technical standards or specifications using well-defined procedures that require openness, balanced participation among affected interests and groups, fairness and due process, and an opportunity for appeal, as a means to carry out policy objectives or activities. Public Law 104-113 (15 U.S.C. 272(b)).  In addition, the NTTAA directs agencies to consult with voluntary, private sector, consensus standards bodies and requires that agencies participate with such bodies in the development of technical standards when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources.   The Department, as a member of the Access Board, was an active participant in the lengthy process of developing the 2004 ADAAG, on which the proposed standards are based.  As part of this update, the Board has made its guidelines more consistent with model building codes, such as the International Building Code (IBC), and industry standards.  It coordinated extensively with model code groups and standard-setting bodies throughout the process so that differences could be reconciled.  As a result, an historic level of harmonization has been achieved that has brought about improvements to the guidelines, as well as to counterpart provisions in the IBC and key industry standards, including those for accessible facilities issued through the American National Standards Institute.

Plain Language Instructions

The Department makes every effort to promote clarity and transparency in its rulemaking.  In any regulation, there is a tension between drafting language that is simple and straightforward that also gives full effect to issues of legal interpretation.  The Department operates a toll-free ADA Information Line (800-514-0301 (voice); 800-514-0383 (TTY)) that the public is welcome to call at any time to obtain assistance in understanding anything in this rule.  If any commenter has suggestions for how the regulation could be written more clearly, please contact Janet L. Blizard, Deputy Chief, Disability Rights Section, whose contact information is provided in the introductory section of this rule, entitled, "FOR FURTHER INFORMATION CONTACT. "

Paperwork Reduction Act

The Paperwork Reduction Act (PRA) requires agencies to clear forms and recordkeeping requirements with OMB before they can be introduced.  44 U.S.C. 3501 et seq.  This rule does not contain any paperwork or recordkeeping requirements and does not require clearance under the PRA.

Unfunded Mandates Reform Act

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final federal regulation that "establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability."  Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.

List of Subjects for 28 CFR Part 36

Administrative practice and procedure, Buildings and facilities, Business and industry, Civil rights, Individuals with disabilities, Penalties, Reporting and recordkeeping requirements.